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Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Act current to 2024-02-06 and last amended on 2023-12-15. Previous Versions

PART 3Enforcement (continued)

Sharing of Information

Marginal note:Regulations

  •  (1) The regulations may provide for any matter relating to

    • (a) the collection, retention, use, disclosure and disposal of information, including a Social Insurance Number, for the purposes of this Act or for the purposes of program legislation as defined in section 2 of the Canada Border Services Agency Act;

    • (b) the disclosure of information for the purposes of national security, the defence of Canada or the conduct of international affairs, including the implementation of an agreement or arrangement entered into under section 5 or 5.1 of the Department of Citizenship and Immigration Act or section 13 of the Canada Border Services Agency Act;

    • (c) the disclosure of information relating to the professional or ethical conduct of a person referred to in any of paragraphs 91(2)(a) to (c) in connection with a proceeding — other than a proceeding before a superior court — or application under this Act to a body that is responsible for governing or investigating that conduct or to a person who is responsible for investigating that conduct, for the purposes of ensuring that persons referred to in those paragraphs offer and provide professional and ethical representation and advice to persons in connection with such proceedings and applications;

    • (d) the retention, use, disclosure and disposal by the Royal Canadian Mounted Police of biometric information and any related personal information that is collected under this Act and provided to it for the enforcement of any law of Canada or a province; and

    • (e) the disclosure of information for the purposes of cooperation between the Government of Canada and the government of a province.

  • Marginal note:Conditions

    (2) Regulations made under subsection (1) may include conditions under which the collection, retention, use, disposal and disclosure may be made.

  • 2004, c. 15, s. 72
  • 2005, c. 38, s. 119
  • 2011, c. 8, s. 4
  • 2012, c. 17, s. 47
  • 2014, c. 39, s. 313
  • 2015, c. 36, s. 174

PART 4Immigration and Refugee Board

Composition of Board

Marginal note:Immigration and Refugee Board

 The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division.

Marginal note:Composition

 The Board is composed of a Chairperson and other members as are required to ensure the proper functioning of the Board.

Marginal note:Oath or affirmation of office

 The Chairperson and other members of the Board must swear the oath or give the solemn affirmation of office set out in the rules of the Board.

  • 2010, c. 8, s. 17

Marginal note:Chairperson and other members

  •  (1) The Chairperson and members of the Refugee Appeal Division and Immigration Appeal Division

    • (a) are appointed to the Board by the Governor in Council, to hold office during good behaviour for a term not exceeding seven years, subject to removal by the Governor in Council at any time for cause, to serve in a regional or district office of the Board;

    • (b) [Repealed, 2010, c. 8, s. 18]

    • (c) are eligible for reappointment in the same or another capacity;

    • (d) shall receive the remuneration that may be fixed by the Governor in Council;

    • (e) are entitled to be paid reasonable travel and living expenses incurred while absent in the course of their duties, in the case of a full-time member, from their ordinary place of work or, in the case of a part-time member, while absent from their ordinary place of residence;

    • (f) are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act and in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act;

    • (g) may not accept or hold any office or employment or carry on any activity inconsistent with their duties and functions under this Act; and

    • (h) if appointed as full-time members, must devote the whole of their time to the performance of their duties under this Act.

  • (1.1) [Repealed, 2012, c. 17, s. 84]

  • Marginal note:Deputy Chairperson and Assistant Deputy Chairpersons

    (2) One Deputy Chairperson for each Division referred to in subsection (1) and not more than 10 Assistant Deputy Chairpersons are to be designated by the Governor in Council from among the full-time members of those Divisions.

  • Marginal note:Full-time and part-time appointments

    (3) The Chairperson and the Deputy Chairpersons and Assistant Deputy Chairpersons of the Divisions referred to in subsection (1) are appointed on a full-time basis and the other members are appointed on a full-time or part-time basis.

  • Marginal note:Qualification

    (4) The Deputy Chairperson of the Immigration Appeal Division and a majority of the Assistant Deputy Chairpersons of that Division and at least 10 per cent of the members of the Divisions referred to in subsection (1) must be members of at least five years standing at the bar of a province or notaries of at least five years standing at the Chambre des notaires du Québec.

  • 2001, c. 27, s. 153
  • 2003, c. 22, s. 173
  • 2010, c. 8, s. 18
  • 2012, c. 17, ss. 48, 84

Marginal note:Disposition after member ceases to hold office

 A former member of the Board, within eight weeks after ceasing to be a member, may make or take part in a decision on a matter that they heard as a member, if the Chairperson so requests. For that purpose, the former member is deemed to be a member.

Marginal note:Disposition if member unable to take part

 If a member of a three-member panel is unable to take part in the disposition of a matter that the member has heard, the remaining members may make the disposition and, for that purpose, are deemed to constitute the applicable Division.

Marginal note:Immunity and no summons

 The following rules apply to the Chairperson and the members in respect of the exercise or purported exercise of their functions under this Act:

  • (a) no criminal or civil proceedings lie against them for anything done or omitted to be done in good faith; and

  • (b) they are not competent or compellable to appear as a witness in any civil proceedings.

Head Office and Staff

Marginal note:Head office

  •  (1) The head office of the Board shall be in the National Capital Region as described in the schedule to the National Capital Act.

  • Marginal note:Residence — Chairperson

    (2) The Chairperson must live in the National Capital Region or within reasonable commuting distance of it.

Marginal note:Personnel

 The Executive Director and other personnel necessary for the proper conduct of the business of the Board shall be appointed in accordance with the Public Service Employment Act, and the personnel are deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

  • 2001, c. 27, s. 158
  • 2003, c. 22, s. 225(E)

Duties of Chairperson

Marginal note:Chairperson

  •  (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson

    • (a) has supervision over and direction of the work and staff of the Board;

    • (b) may at any time assign a member appointed under paragraph 153(1)(a) to the Refugee Appeal Division or the Immigration Appeal Division;

    • (c) may at any time, despite paragraph 153(1)(a), assign a member of the Refugee Appeal Division or the Immigration Appeal Division to work in another regional or district office to satisfy operational requirements, but an assignment may not exceed 120 days without the approval of the Governor in Council;

    • (d) may designate, from among the full-time members appointed under paragraph 153(1)(a), coordinating members for the Refugee Appeal Division or the Immigration Appeal Division;

    • (e) assigns administrative functions to the members of the Board;

    • (f) apportions work among the members of the Board and fixes the place, date and time of proceedings;

    • (g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay;

    • (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons, to assist members in carrying out their duties; and

    • (i) may appoint and, subject to the approval of the Treasury Board, fix the remuneration of experts or persons having special knowledge to assist the Divisions in any matter.

  • Marginal note:Delegation

    (2) The Chairperson may delegate any of his or her powers under this Act to a member of the Board, except that

    • (a) powers referred to in subsection 161(1) may not be delegated;

    • (b) powers referred to in paragraphs (1)(a) and (i) may be delegated to the Executive Director of the Board;

    • (c) powers in relation to the Immigration Appeal Division and the Refugee Appeal Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons, or other members, including coordinating members, of either of those Divisions; and

    • (d) powers in relation to the Immigration Division or the Refugee Protection Division may only be delegated to the Deputy Chairperson, the Assistant Deputy Chairpersons or other members, including coordinating members, of that Division.

  • 2001, c. 27, s. 159
  • 2010, c. 8, s. 19

Marginal note:Absence, incapacity or vacancy

 In the event of the absence or incapacity of the Chairperson, or if the office of Chairperson is vacant, the Minister may authorize one of the Deputy Chairpersons or any other member of the Board to act as Chairperson.

Functioning of Board

Marginal note:Rules

  •  (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons, the Chairperson may make rules respecting

    • (a) the referral of a claim for refugee protection to the Refugee Protection Division;

    • (a.1) the factors to be taken into account in fixing or changing the date of the hearing referred to in subsection 100(4.1);

    • (a.2) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, other than in respect of appeals of decisions of the Refugee Protection Division, the priority to be given to proceedings, the notice that is required and the period in which notice must be given;

    • (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules;

    • (c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and

    • (d) any other matter considered by the Chairperson to require rules.

  • Marginal note:Distinctions

    (1.1) The rules made under paragraph (1)(c) may distinguish among claimants for refugee protection who make their claims inside Canada on the basis of whether their claims are made at a port of entry or elsewhere or on the basis of whether they are nationals of a country that is, on the day on which their claim is made, a country designated under subsection 109.1(1).

  • Marginal note:Tabling in Parliament

    (2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council.

  • 2001, c. 27, s. 161
  • 2010, c. 8, s. 20
  • 2012, c. 17, ss. 49, 61, 84

Provisions that Apply to All Divisions

Marginal note:Sole and exclusive jurisdiction

  •  (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

  • Marginal note:Procedure

    (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.

Marginal note:Composition of panels

 Matters before a Division shall be conducted before a single member unless, except for matters before the Immigration Division, the Chairperson is of the opinion that a panel of three members should be constituted.

Marginal note:Presence of parties

 Where a hearing is held by a Division, it may, in the Division’s discretion, be conducted in the presence of, or by a means of live telecommunication with, the person who is the subject of the proceedings.

Marginal note:Powers of a commissioner

 The Refugee Protection Division, the Refugee Appeal Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing.

  • 2001, c. 27, s. 165
  • 2010, c. 8, s. 22

Marginal note:Proceedings — all Divisions

 Proceedings before a Division are to be conducted as follows:

  • (a) subject to the other provisions of this section, proceedings must be held in public;

  • (b) on application or on its own initiative, the Division may conduct a proceeding in the absence of the public, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is

    • (i) a serious possibility that the life, liberty or security of a person will be endangered if the proceeding is held in public,

    • (ii) a real and substantial risk to the fairness of the proceeding such that the need to prevent disclosure outweighs the societal interest that the proceeding be conducted in public, or

    • (iii) a real and substantial risk that matters involving public security will be disclosed;

  • (c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Refugee Appeal Division must be held in the absence of the public;

  • (c.1) subject to paragraph (d), proceedings before the Immigration Division must be held in the absence of the public if they concern a person who is the subject of a proceeding before the Refugee Protection Division or the Refugee Appeal Division that is pending or who has made an application for protection to the Minister that is pending;

  • (d) on application or on its own initiative, the Division may conduct a proceeding in public, or take any other measure that it considers necessary to ensure the appropriate access to the proceedings if, after having considered all available alternate measures and the factors set out in paragraph (b), the Division is satisfied that it is appropriate to do so;

  • (e) despite paragraphs (b) to (c.1), a representative or agent of the United Nations High Commissioner for Refugees is entitled to observe proceedings concerning a protected person or a person who has made a claim for refugee protection or an application for protection; and

  • (f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information or other evidence in respect of which an application has been made under section 86, and not rejected, or with information or other evidence protected under that section.

  • 2001, c. 27, s. 166
  • 2008, c. 3, s. 5
  • 2012, c. 17, s. 50
 

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